BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT –
SEPARATE OPINIONS
199
complaint made in relation to the Chapter II regime. After all, as the
judgment records in § 451, in both their application to the Court and their
initial observations, the applicants in the second of the joined cases had
incorrectly referred to the Chapter II regime as a regime for the interception
of communications data; rather than a regime which permits certain public
authorities to acquire communications data from Communications Service
Providers (“CSPs”). This “fundamental legal misunderstanding” led the
Government to submit inter alia that the applicants had put forward no
factual basis whatsoever for concluding that their communications were
acquired in this way, and that they did not contend that they had been
affected, either directly or indirectly, by the regime.
16. As noted above, the Court’s conclusion on the Chapter II regime
was, of course, ultimately based on the concession by the Government in
R (The National Council for Civil Liberties (Liberty)) v Secretary of State
for the Home Department & Anor [2018] EWHC 975 (Admin) which
enabled the majority to find that the equivalent language in the Chapter II
regime was “not in accordance with the law” within the meaning of Article
8 of the Convention (§ 467). However, had that not been the case, this Court
would have been confronted with the task of considering in detail whether
the regime’s attendant safeguards were sufficient to satisfy the requirements
of the Convention; and that (1) on the basis of a case initially advanced on
the basis of a “fundamental legal misunderstanding” about the nature of the
regime, (2) without any assistance or findings by the IPT in relation to what
the attendant safeguards, both above and below the waterline, in fact were
and/or (3) any reasoned conclusion by the IPT as to whether or not they
satisfied the requirements of Article 8 (or could be made to satisfy the
requirements of Article 8 by means of further disclosure akin to that ordered
on 9 October 2014 in the proceedings brought by the applicants in the third
of the joined applications). This would plainly have been a wholly
undesirable state of affairs.
The section 8(4) regime
17. As indicated above, there is much in the judgment of the majority we
agree with.
18. Firstly, we agree with the majority (as well as with the unanimous
judgment in Centrum För Rättvisa) in relation to the relevant general
principles as set out in the judgment. In particular we agree with the
affirmation by the majority (as well as the judgment in Centrum För
Rättvisa and the report by the Venice Commission) that while the Court has
considered prior judicial authorisation to be an important safeguard, and
perhaps even “best practice”, it has also repeatedly confirmed that, by itself,
such prior judicial authorisation is neither necessary nor sufficient to ensure
compliance with Article 8 of the Convention (§ 320).